Employment Law Update - Winter 2014

Employee or Volunteer?


It is very important for employers to properly determine whether individuals in their workplace are employees or would more properly be classified as volunteers, independent contractors, or owners.  This is because many of the federal laws prohibiting discrimination and otherwise establishing employee rights may not apply if the person in question is not an employee.  This question was front and center in a case recently handled by the K&C Employment Law Team, Bailey vs. City of Chesapeake.  K&C’s Scott Kezman and Mark Warmbier obtained a significant victory in that case which determined that a volunteer auxiliary police officer was not an employee covered by the American’s with Disabilities Act (“ADA”) or the Genetic Information Nondiscrimination Act (“GINA”).  K&C was able to demonstrate to the Court that the non-paid plaintiff had been properly classified as a volunteer who was not within the class of persons protected by either ADA or GINA and dismissed the plaintiff’s claims.


While it might seem evident that a non-paid volunteer is not an “employee” entitled to protection under federal anti-discrimination laws, nonpayment is not the only test to determine whether or not an individual is a volunteer.  In other cases, for example, volunteer firefighters have been allowed to bring suit under federal anti-discrimination laws.  Courts look to a number of other factors typically associated with the employee-employer relationship to determine whether or not an individual is a true volunteer, including whether the work being performed is part of the employer’s regular business; whether work performed by the individual is being regularly performed by other compensated employees; whether the individual is receiving benefits; and whether the individual is being treated as an employee for other reasons, such as for tax purposes.


Properly classifying individuals as employees as opposed to volunteers, independent contractors, or owners, is important not only to avoid private lawsuits, but some of our federal and state government agencies have made the misclassification of individuals a high priority in connection with their audits of employers. For example, the IRS and the Wage-Hour Division of the Department of Labor are two agencies which are reviewing potential misclassification of employees on a heightened basis.


Practical Pointer


The tests for whether an individual is an employee vary depending upon the law, or agency, in question.  How an employer classifies, or labels, an employer is a factor to be considered, but it is by no means the end of the inquiry.  Since misclassifcation may involve a number of employees, mistakes can be very costly. The K&C Employment Team is available to address any specific questions regarding this increasingly important classification issue.


Former Workers’ Comp Commission Chair to Speak at K&C employment law Seminar


The former Chairman of the Virginia Workers’ Compensation Commission, William L. Dudley, has agreed to participate in the April 3, 2014, showing of the 30TH Annual Employment Law Update at the Greater Richmond Convention Center.  Mr. Dudley will be one of the presenters of a workshop on workers’ compensation designed to help employers deal with and limit workers’ compensation liability.  As the former head of this agency,
Mr. Dudley will provide a very valuable perspective to all attendees who choose to attend that workshop.


A number of other expert speakers have agreed to participate in this day-long program, including Darrell Graham, the Area Director of the Richmond Office of the Equal Employment Opportunity Commission; Ben Alexander, the founding partner of Alexander Consulting & Training; and a host of others.  As always, these guest speakers and the K&C Employment Team will answer any and all employment law questions attendees may have.  A variety of perspectives will be presented and attendees will have a number of workshops to choose from in what promises to be both an educational and entertaining day.


Workplace Harassment: What Not To Do


A federal Court of Appeals down in Texas recently reminded us that firing an employee after the employee complains of harassment can often result in a claim of retaliation.  And when the reason for termination is not well-documented – or is idiotic – legal liability can be the result.  Tonia Royal was hired as a leasing manager for an apartment complex.  She was the only employee in the front office who had a desk.  Almost immediately, she asserted, two of the apartment company’s maintenance workers began to harass her.  Ms. Royal’s principal objection was that they “sniffed her.”  She was sniffed at her desk, she was sniffed upon leaving the restroom.  On one occasion a maintenance worker sat on a file cabinet in back of her chair, sniffing her for three to five minutes!  The court aptly noted, “it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.”  When she complained to an assistant manager, he helpfully told her, “you know what men are like when they get out of prison.”  That same day, the assistant manager, his boss, and the two maintenance men she had complained about met with Royal.  Ms. Royal was fired later that same day – her fourth day on the job – and was given no reason for termination.


But the icing on the cake came at the oral argument before the Court of Appeals, when the apartment management company’s lawyer finally explained why Ms. Royal was really fired.  It was for a business-related, sex-neutral, non-retaliatory reason: she had swatted a fly “too hard.”  The Court wisely refrained from examining any evidence as to the appropriate amount of torque and acceleration to be used in swatting a fly (no doubt to the distress of many insect rights activists), and simply held that a jury could weigh the evidence and conclude reasonably that the company was lying about why it fired Ms. Royal.


Practical Pointer


Complaints about workplace harassment should be taken seriously and investigated thoroughly by objective parties.  Certainly firing someone the same day she complains about unlawful conduct, for a made-up reason, is not appropriate, which is why the Appellate Court reversed the lower Court and allowed this case to proceed to trial.


EEOC Sets Record for Monetary Relief in 2013


Like most of us, the EEOC was hit hard with economic challenges in 2013.  The Commission was forced to furlough its entire workforce for 40 hours, freeze hiring, and significantly reduce its operating budget, all while managing the 93,727 new charges of discrimination filed in the private sector in FY 2013.  But despite these hardships, the EEOC obtained a record-setting $372.1 million in monetary relief for workplace discrimination claimants. 


While the Commission hit record numbers in monetary relief, its limited resources resulted in an increased backlog of cases.  After making strides in backlog reduction in 2011 and 2012, the Commission fell a bit short in 2013, resolving nearly 14,000 fewer cases than the year before.  For 2014, the EEOC will strive to meet enforcement objectives but employers can expect cutbacks at the EEOC to create additional backlogs.  This may, in turn, lead to frustrations for both employers and claimants hoping to expeditiously resolve any pending charges.  


Obamacare Update: Final Regs to be Issued Soon


The Affordable Care Act (“ACA”) forces all large employers to offer adequate and affordable health coverage to employees starting in 2015 or face substantial penalties. Proposed regulations issued in late 2012 provided basic guidance but left many unanswered questions. The IRS will be issuing final regulations in late February or early March that will provide answers to these open issues and will be of significant interest to most employers. Given the importance of understanding the ACA Employer Mandate, the K&C Employment Team will be providing a workshop on the final rules and how they impact employers at the April 3rd showing of our Employment Law Update in Richmond.


30th Annual Employment Law Update - The Times They Are A Changin’


Dealing with change is necessary for anyone involved with the American workplace. Kaufman & Canoles is pleased to announce a conference dedicated to past, present and future changes in employment law. The 30TH  Annual Employment Law Update - The Times They Are A Changin’ will be held on Thursday, April 3, 2014 at the Greater Richmond Convention Center. The K&C Employment Law Team will be joined by a variety of human resource professionals to present educational workshops designed to help employers cope with change.


Workshops will include presentations from a number of current and former representatives from relevant government agencies, including the EEOC, VEC and Workers Compensation Commission. This year’s program will also include a special luncheon presentation by Humorist, Author and Motivational Speaker Steve Kissell and a special 30TH Anniversary gift for one lucky attendee. Topics include: Documentation Strategies; the Risks of Social Media faced by Employers; Reducing Employer Liability for Workers Compensation and Unemployment Compensation; Investigating Employee Complaints; Effective Discipline and Discharge; and Employer Compliance with the Affordable Care Act, and more!


The 30TH Annual Employment Law Update will provide essential information for HR Professionals and small business owners. Additionally, attendance at this conference qualifies for 5 credit hours toward PHR and SPHR Recertification through the Human Resource Certification Institute (HRCI). For more information or to register online, please visit www.kaufCAN.com or contact Nia Lissimore at nlissimore@kaufcan.com


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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